In re Z.C.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Z.C., Slip Opinion No. 

.]




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     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
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     South Front Street, Columbus, Ohio 43215, of any typographical or other
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     the opinion is published.




                          SLIP OPINION NO. 

                                        IN RE Z.C.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as In re Z.C., Slip Opinion No. 

.]
Domestic relations—Termination of parental rights—R.C. 2151.414—The proper
        appellate standards of review to apply in cases involving a juvenile court’s
        decision under R.C. 2151.414 to award permanent custody of a child and
        to terminate parental rights are the sufficiency-of-the-evidence and/or
        manifest-weight-of-the-evidence standards, as appropriate depending on
        nature of arguments presented by parties—Court of appeals’ judgment
        reversed and cause remanded to court of appeals.
(No. 2022-1251—Submitted September 12, 2023—Decided December 27, 2023.)
   CERTIFIED by the Court of Appeals for Ashtabula County, No. 2022-A-0014,
                                     

.
                                  __________________
                             SUPREME COURT OF OHIO




       STEWART, J.
       {¶ 1} In this appeal, we resolve a conflict between the Eleventh District
Court of Appeals and other appellate districts over the proper appellate standards
of review to apply in cases involving a juvenile court’s decision under R.C.
2151.414 to award permanent custody of a child and to terminate parental rights.
We hold that the sufficiency-of-the-evidence and/or manifest-weight-of-the-
evidence standards apply in such appeals. Because the Eleventh District applied an
abuse-of-discretion standard in this case, we reverse that court’s judgment and
remand this matter to the court of appeals for it to apply the proper standards.
                          Facts and Procedural History
       {¶ 2} Appellant, D.C., is the father of Z.C., a minor child. Appellee, the
Ashtabula County Children Services Board (“ACCSB”), became involved with
Z.C. in early 2019 when the Juvenile Division of the Ashtabula County Court of
Common Pleas granted the agency emergency temporary custody of Z.C. based on
the agency’s concerns about Z.C.’s mother’s home, where the child was living with
other siblings. D.C. did not reside at that home, and Z.C. had never been in D.C.’s
home. Ultimately, Z.C. was placed in foster care with his half-brother, L.T., with
whom he shares the same mother. ACCSB has been granted permanent custody of
L.T., and the foster family wishes to adopt both children.
       {¶ 3} In May 2020, D.C. moved for custody of Z.C. in the juvenile court.
In August 2020, ACCSB moved to modify its temporary custody of Z.C. to
permanent custody. The juvenile-court magistrate held an evidentiary hearing, and
in April 2021, the magistrate issued a decision granting ACCSB’s motion. The
magistrate determined that committing Z.C. to the permanent custody of the agency
and terminating the parental rights of D.C. and Z.C.’s mother would serve Z.C.’s
best interest. D.C. objected to the magistrate’s best-interest analysis, arguing that
the evidence had not demonstrated that a legally secure placement of Z.C. could
not be achieved without granting permanent custody to ACCSB and that he was




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able to care for Z.C. and should have been granted custody. In March 2022, the
juvenile court overruled D.C.’s objections and adopted the magistrate’s decision
awarding permanent custody to ACCSB and terminating the parental rights of D.C.
and Z.C.’s mother, concluding that the magistrate’s best-interest findings were
supported by the record.
        {¶ 4} D.C. appealed the judgment to the Eleventh District Court of Appeals,
arguing (1) that the juvenile court had abused its discretion in finding that clear and
convincing evidence supported granting permanent custody of Z.C. to ACCSB and
(2) that the juvenile court had erred to the prejudice of D.C. and against the best
interest of Z.C. by granting permanent custody to ACCSB.
        {¶ 5} The Eleventh District affirmed the trial court’s judgment, concluding
that the trial court had not abused its discretion in terminating parental rights and
granting the agency’s motion for permanent custody. The appellate court also
recognized that its decision to apply an abuse-of-discretion appellate standard of
review was in conflict with decisions of other appellate districts that had applied a
sufficiency-of-the-evidence standard and/or a manifest-weight standard.           The
Eleventh District sua sponte certified that its decision was in conflict with the
following cases: In re S.V., 6th Dist. Wood No. WD-13-060, 

; In re
Y.M., 5th Dist. Tuscarawas Nos. 2021 AP 09 0020 through 0023, 

;
In re Ca.S., 4th Dist. Pickaway Nos. 21CA9 and 21CA10, 

; In re
W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 

; and In
re R.B., 12th Dist. Butler Nos. CA2022-01-003 and CA2022-01-004, 2022-Ohio-
1705.
        {¶ 6} We accepted the certified conflict on the following question: “When
reviewing a trial court’s decision to terminate parental rights, is the appellate
standard of review abuse of discretion, manifest weight of the evidence, clear and
convincing evidence, or sufficiency of the evidence?” 

, 2023-
Ohio-482, 

.




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                                 Law and Analysis
       {¶ 7} Under R.C. 2151.414(B)(1), a juvenile court may grant permanent
custody of a child to the agency that moved for permanent custody if the court
determines, “by clear and convincing evidence, that it is in the best interest of the
child” to do so and that one of five factors enumerated in R.C. 2151.414(B)(1)(a)
through (e) applies. “Clear and convincing evidence is that measure or degree of
proof which is more than a mere ‘preponderance of the evidence,’ but not to the
extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases,
and which will produce in the mind of the trier of facts a firm belief or conviction
as to the facts sought to be established.” Cross v. Ledford, 

, 

 (1954), paragraph three of the syllabus.
       {¶ 8} We have described an appellate court’s task when reviewing a trial
court’s application of the clear-and-convincing burden of proof as follows: “Where
the proof required must be clear and convincing, a reviewing court will examine
the record to determine whether the trier of facts had sufficient evidence before it
to satisfy the requisite degree of proof.” State v. Schiebel, 

,

 (1990), citing Ford v. Osborne, 

, 

 (1887),
paragraph two of the syllabus; accord 

.
       {¶ 9} Here, the court of appeals stated that it would not substitute its
judgment for that of a trial court “where there is ample competent and credible
evidence supporting the trial court’s determination.” 

, 

, ¶ 10. But it also described its task of appellate review as follows:


       [A]n appellate court reviews a trial court’s determination of
       permanent custody and the termination of parental rights for an
       abuse of discretion. In re Snow, 11th Dist. Portage No. 2003-P-
       0080, 

, ¶ 28.            See also In re D.F., 2d Dist.
       Montgomery Nos. 29350 and 2016-CA028, 

;




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                                January Term, 2023




       In re L.S., 8th Dist. Cuyahoga No. 109995, 

;
       Matter of T.L., 7th Dist. Jefferson No. 19 JE 0013, 

; and Matter of W.G., 7th Dist. Jefferson No. 22 JE 0002, 2022-
       Ohio-2342, ¶ 23. “Further, we review a judgment of the trial court
       adopting the decision of its magistrate for an abuse of discretion.”
       Molzon v. Molzon, 11th Dist. Ashtabula No. 2021-A-0024, 2022-
       Ohio-1634, ¶ 51. An abuse of discretion is the trial court’s “failure
       to exercise sound, reasonable, and legal decision-making.” State v.
       Beechler, 2d Dist. Clark No. 09-CA-54, 

, ¶ 62,
       quoting Black’s Law Dictionary 11 (8[th] Ed.2004). “The highly
       deferential abuse of discretion standard is particularly appropriate in
       allocation of parental rights and responsibilities cases since the trial
       judge is in the best position to determine the credibility of the
       witnesses and there ‘ “may be much that is evident in the parties’
       demeanor and attitude that does not translate well to the record.” ’ ”
       Molzon, supra, at ¶ 53[,] quoting In re K.R., 11th Dist. Trumbull No.
       2010-T-0050, 

, ¶ 30, quoting Wyatt v. Wyatt, 11th
       Dist. Portage No. 2004-P-0045, 

.

.
       {¶ 10} In contrast to the abuse-of-discretion appellate standard of review
that the Eleventh District applied here, the appellate courts in the certified-conflict
cases applied a sufficiency-of-the-evidence standard and/or a manifest-weight
standard. See S.V., 

, at ¶ 25 (concluding that the trial court’s
decision to grant the state’s motion for permanent custody was not against the
manifest weight of the evidence, because the trial court’s best-interest findings were
supported by competent, credible evidence); Y.M., 

 (finding
that the trial court’s finding that the permanent-custody award was in the children’s




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best interests was not against the manifest weight of the evidence); Ca.S., 2021-
Ohio-3874, at ¶ 44 (“A reviewing court generally will not disturb a trial court’s
permanent custody decision unless the decision is against the manifest weight of
the evidence”); W.W., 

 (“As an appellate court, we do not
review the juvenile court’s decision [to award permanent custody] under an abuse-
of-discretion standard; rather, we must examine the record and determine if the
juvenile court had sufficient evidence before it to satisfy the statutory clear-and-
convincing standard” [footnote omitted]); R.B., 

(explaining that an appellate court must review whether sufficient credible evidence
exists to support the juvenile court’s award of permanent custody and that an
appellate court may also conclude that the judgment is against the manifest weight
of the evidence).
       {¶ 11} Given that R.C. 2151.414 requires that a juvenile court find by clear
and convincing evidence that the statutory requirements are met, we agree with
those appellate courts that have determined that the sufficiency-of-the-evidence
and/or manifest-weight-of-the-evidence standards of review are the proper
appellate standards of review of a juvenile court’s permanent-custody
determination, as appropriate depending on the nature of the arguments that are
presented by the parties. We therefore conclude that the court of appeals here erred
in applying an abuse-of-discretion standard.
       {¶ 12} We recognize the confusion that may have arisen from our case law.
For example, in Masters v. Masters, 

, 

 (1994),
this court stated, “It has long been a recognized rule of law that for a reviewing
court to overturn a trial court’s determination of custody, the appellate court must
find that the trial court abused its discretion.” The Masters decision cited Miller v.
Miller, 

, 

 (1988), which stated that “the trial
court’s determination in a custody proceeding is, of course, subject to reversal upon
a showing of an abuse of discretion.” But both Masters and Miller involved




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                                January Term, 2023




change-of-custody proceedings under R.C. 3109.04 for the allocation of parental
rights and responsibilities, not a permanent-custody determination terminating
parental rights under R.C. 2151.414, for which the General Assembly has expressly
prescribed a clear-and-convincing-evidence burden of proof. Thus, neither Masters
nor Miller is instructive here. Instead, we look to this court’s specific instruction
relevant to the clear-and-convincing standard. See Cross, 161 Ohio St. at 477, 

 (“Where the degree of proof required to sustain an issue must be clear
and convincing, a reviewing court will examine the record to determine whether
the trier of facts had sufficient evidence before it to satisfy the requisite degree of
proof”).
       {¶ 13} Sufficiency of the evidence and manifest weight of the evidence are
distinct concepts and are “ ‘both quantitatively and qualitatively different.’ ”
Eastley v. Volkman, 

, 

, 

, ¶ 10,
quoting State v. Thompkins, 

, 

 (1997), paragraph
two of the syllabus. We have stated that “sufficiency is a test of adequacy,”

, while weight of the evidence “ ‘is not a question of mathematics,
but depends on its effect in inducing belief’ ” (emphasis sic), 

, quoting
Black’s Law Dictionary 1594 (6th Ed.1990). “Whether the evidence is legally
sufficient to sustain a verdict is a question of law.” 

. “When applying a
sufficiency-of-the-evidence standard, a court of appeals should affirm a trial court
when “ ‘the evidence is legally sufficient to support the jury verdict as a matter of
law.” ’ ” Bryan-Wollman v. Domonko, 

, 

, 

, quoting 

, quoting Black’s at 1433.
       {¶ 14} But “even if a trial court judgment is sustained by sufficient
evidence, an appellate court may nevertheless conclude that the judgment is against
the manifest weight of the evidence.” Eastley at ¶ 12. When reviewing for manifest
weight, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether, in resolving




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conflicts in the evidence, the finder of fact clearly lost its way and created such a
manifest miscarriage of justice that the judgment must be reversed and a new trial
ordered. Id. at ¶ 20. “In weighing the evidence, the court of appeals must always
be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21. “The
underlying rationale of giving deference to the findings of the trial court rests with
the knowledge that the trial judge is best able to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. v.
Cleveland, 

, 

 (1984). “ ‘If the evidence is
susceptible of more than one construction, the reviewing court is bound to give it
that interpretation which is consistent with the verdict and judgment, most
favorable to sustaining the verdict and judgment.’ ” Id. at fn. 3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 603, at 191-192 (1978).
       {¶ 15} We recognize that the Eleventh District here described its abuse-of-
discretion review similarly to how other courts have described sufficiency or
manifest-weight review when it stated, “We will not substitute our judgment for
that of the trial court applying a clear-and-convincing standard where there is ample
competent and credible evidence supporting the trial court’s determination.” 2022-
Ohio-3199, 

, at ¶ 10, citing In re A.J.O. & M.N.O., 1st Dist.
Hamilton No. C-180680, 

. This reference to “competent and
credible evidence” and its relationship to manifest-weight review has been
described as follows:


       The interplay between the presumption of correctness and the ability
       of an appellate court to reverse a trial court decision based on the
       manifest weight of the evidence was succinctly set forth in the
       holding of this court in C.E. Morris Co. v. Foley Construction Co.[,
       

, 

 (1978)]: “Judgments supported




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                                 January Term, 2023




        by some competent, credible evidence going to all the essential
        elements of the case will not be reversed by a reviewing court as
        being against the manifest weight of the evidence.”


Seasons Coal Co. at 80. In Eastley, 

, 

, 

, we explained that some courts have relied on the phrase “some
competent, credible evidence” in C.E. Morris Co. to blur the concepts of
sufficiency and manifest weight, leading to some confusion. Eastley at ¶ 14-15.
But in Eastley, we made clear that the concepts of sufficiency and manifest weight
in civil cases are distinct and that “the sufficiency of the evidence is quantitatively
and qualitatively different from the weight of the evidence.” Id. at ¶ 23. Thus,
although the phrase “some competent, credible evidence” can be helpful in
describing the reviewing court’s deferential role in the manifest-weight analysis, it
should not be used as a substitute for the separate sufficiency and manifest-weight
analyses appropriate for permanent-custody determinations.
        {¶ 16} If a court of appeals determines that a judgment is against the
manifest weight of the evidence, the proper remedy is a remand for a new trial. See
id. at ¶ 22. However, “[r]eversal on the manifest weight of the evidence and remand
for a new trial are not to be taken lightly.” Id. at ¶ 31. Additionally, the role of this
court to conduct manifest-weight review in civil cases is limited. Under R.C.
2503.43, in a civil case in which this court does not have original jurisdiction, this
court “need not determine as to the weight of the evidence.” See also Eastley at
¶ 18 (“We will not review a determination by a court of appeals that a verdict or
finding is against the weight of the evidence”); Chem. Bank of New York v. Neman,

, 

 (1990) (“This court is not required to
determine the weight of evidence in civil matters, R.C. 2503.43, and ordinarily will
not do so”); Bown & Sons v. Honabarger, 

, 252, 

(1960) (“The Supreme Court is not required to and ordinarily does not weigh the




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evidence. Therefore, it will not review the determination by a Court of Appeals
that a finding is against the weight of the evidence”).
       {¶ 17} We recognize that D.C.’s assignment of error on appeal to the
Eleventh District stated that the juvenile court had abused its discretion in finding
that clear and convincing evidence supported its permanent-custody decision. But
the appellate court’s role is to apply the appropriate appellate standard of review
depending on the nature of the arguments that are presented by the parties, not for
the appellant to dictate the standard of review in his or her assignment of error. And
it may be that despite how the Eleventh District characterized its review, the
Eleventh District essentially found that the juvenile court’s determination was
supported by sufficient evidence and was not against the manifest weight of the
evidence. But we are asked only to resolve the certified-conflict question to
determine the proper appellate standards of review.           Having resolved that
question—and because it is not for this court to conduct a manifest-weight
review—we must remand this matter to the court of appeals for that court to apply
the proper standards.
                                    Conclusion
       {¶ 18} For the foregoing reasons, we answer the certified-conflict question
by holding that the proper appellate standards of review to apply in cases involving
a juvenile court’s decision under R.C. 2151.414 to award permanent custody of a
child and to terminate parental rights are the sufficiency-of-the-evidence and/or
manifest-weight-of-the-evidence standards, as appropriate depending on the nature
of the arguments that are presented by the parties. Because the Eleventh District
Court of Appeals applied an abuse-of-discretion standard in this case, we reverse
that court’s judgment and remand this matter to the court of appeals for it to apply
the proper standards.
                                                                  Judgment reversed
                                                                and cause remanded.




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                               January Term, 2023




        KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, BRUNNER, and DETERS,
JJ., concur.
                              _________________
        Colleen Mary O’Toole, Ashtabula County Prosecuting Attorney, and
Christopher R. Fortunato, Assistant Prosecuting Attorney, for appellee.
        Judith M. Kowalski, for appellant.
        Joseph Palazzo, guardian ad litem for Z.C.
        Case Western Reserve University School of Law and Andrew S. Pollis; and
Cullen Sweeney, Cuyahoga County Public Defender, and Britta Barthol, Assistant
Public Defender, urging reversal for amici curiae Case Western Law Professors and
Cuyahoga County Public Defender.
        Gessner & Platt Co., L.P.A., and Michael P. Walton, urging reversal for
amicus curiae N.H.
        Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Joseph
C. Young, Assistant Prosecuting Attorney, in support of neither party, for amicus
curiae Cuyahoga County Division of Children and Family Services.
                              _________________




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